When I wrote yesterday, I predicted that primary turnout this year for both Democrats and Republicans would likely exceed - albeit modestly - 2010 turnout.
That turned out not to be the case, with turnout falling for both parties - for Democrats to just short of a multi-decade low.
Overall, just barely over 4% of voters cast a ballot in the Democratic primary and 9.8% in the Republican primary.
Even a large diverse county like Dallas only saw Democratic turnout of 5.79% and Republican turnout of 7.40%.
In some counties, turnout was even more anemic, with just 53,736 voters in Harris County (2.7%) casting a ballot in this year’s Democratic primary - contrasted with turnout of 5.38% in 2010 and 12.64% in 2012.
In short, all the more reason why this Texas primary serves as a poor “test” of the state’s voter ID law - especially compared to general election turnout.
A number of news outlets have described the 2014 Texas primary as the first big test for the state’s voter ID law - and that’s true, to an extent.
But it’s important to understand the limitations and caveats of the “test.”
For starters, although voter turnout almost certainly will exceed the 8.55% of the state’s registered voters who turned out in November 2013 to vote on constitutional amendments, it is not clear that turnout will much exceed - if at all - the combined 16.6% of voters who voted in the 2010 Democratic and Republican primaries.
That’s a far cry from the 38% of voters who voted in the 2010 general election (when Texas had the lowest voter turnout in the country) and even further from the 58.6% of voters who cast a ballot in the last presidential election.
In other words, while the primary may be a stress test, over relying on it is a bit like using how a well a city does with a quarter inch of ice to predict how the city would do with a major snowstorm. Disaster with a quarter inch of ice - or in a low turnout primary - would be bad sign indeed, but the opposite can’t be said to be necessarily true.
Moreover, although some partisans likely will trumpet any higher turnout rates as a sign of how the law is, or isn’t, impacting voters, there are several good reasons for thinking that the primary isn’t especially predictive.
For one thing, primary voters tend to be the most regular of voters and the most involved in politics and, thus, the most likely to know about the law and its requirements. In Texas, they also skew older and more affluent - and evidence suggests that a poorer voters and a growing number of younger voters are the ones especially unlikely to have IDs. Primary voters, in other words, are different in any number of ways from the November electorate and potentially even more different from the great mass of Texas voters (62%) who didn’t vote in 2010 but who might in November 2014.
But another consideration is perhaps the most important: party primaries in Texas are run by the parties themselves.
While Republican partisans often talk about voter fraud, they tend not to imagine that such fraud is occurring in their own (heavily Anglo) ranks. Instead, when voter fraud gets discussed it usually is in the context of African-Americans and Hispanics (and especially “illegal aliens” ) trying to steal elections for Democrats in the general.
Likewise, partisan Democrats of the sort who tend to serve as election judges are probably the least likely to believe that there is large scale voter fraud going on - and the most likely to be see voter ID laws in terms of “Republican voter suppression.”
In short, pressures to apply the law in a hyperagressive manner that one could easily imagine in a hotly contested general election - with pollwatching groups out in abundance - are unlikely to be present in the primary.
One final caveat, to the extent the primary has predictive value, the most meaningful stat won’t so much be turnout but the number of provisional ballots cast. Higher turnout, but a higher number of provisionals because of ID problems, would be a canary in the mine worth noting.
So far, there are a few antedotal stories of problems (see below) but the full numbers once they become available in the coming weeks will the key statistic to watch.
And also this today: State Representative Garnett Coleman (D-Houston) says that Harris County poll workers were incorrectly instructed that people whose address in the voter rolls did not match their ID (including Coleman) needed to sign an affidavit before voting.
In-person early voting for the 2014 Texas primary ended Friday.
So, what do the trends show so far?
In short, for all the high profile races this year & the tens of millions of dollars being spent, it looks to be another year of anemic turnout for both Democrats and Republicans - at least if trends in the state’s 15 largest counties are any indication.
Of the 8,684,585 registered voters in the largest 15 counties, just over 6.80% of them had voted as of Friday in either the Democratic or Republican primaries.
Harris County - the state’s biggest county by far with 2,006,270 registered voters - saw just 105,508 voters through Friday - though that was still enough to rank it as the top GOP county.
It does get perhaps just a bit more interesting, however, with a slightly longer view.
Although Democratic turnout was lower than Republican turnout as a rule in the 15 big counties, a number of counties, including Dallas and Tarrant, show a noticeable upward trend line when the last three mid-term cycles are considered.
And on the Republican side, although primary turnout was higher in some counties, the trend line in even more counties was flat or even downward - perhaps surprising given the large number of sharply contested statewide Republican primaries this year.
Of course, a full analysis will have to await data from all of the state’s counties after Tuesday.
But regardless, things are a long way from the primaries of old for Democrats. And Republicans - for all their general election success - look likely to continue to be mired in a decades long trend of low primary turnout.
Friday was the deadline for plaintiffs in the Texas redistricting case to designate testifying expert witnesses. With that bit of fanfare, here’s the list:
DOJ: Dr. Theodore Arrington, University of North Carolina at Charlotte.
Mexican-American Legislative Caucus: Dr. Robert Brischetto, James Harrington, and George Korbel.
NAACP/African-American members of Congress: Dr. Richard Murray, University of Houston, and Anthony Fairfax.
Perez plaintiffs: George Korbel.
Quesada plaintiffs: Dr. Allan Lichtman, American University.
Texas Democratic Party: Dr. Michael McDonald, George Mason University.
Texas Latino Redistricting Task Force: Dr. Henry Flores, St. Mary’s University, and Dr. Richard Engstrom, Duke University.
Travis County plaintiffs: Dr. Stephen Ansolabehere, Harvard University.
The State of Texas has until March 14 to designate its testifying expert witnesses.
African-American and Hispanic plaintiff groups filed papers Monday joining with the Justice Department in requesting that Judge Nelva Gonzales Ramos compel the State of Texas turn over documents the state is withholding on grounds of legislative and attorney-client privilege.
The joinder said the state’s claims of privilege were being “broadly, vaguely, and improperly asserted” with the goal of “prevent[ing] Plaintiffs from obtaining crucial evidence at the heart of this case: whether Senate Bill 14 (“SB 14”) was enacted, at least in part, for the purpose of denying or abridging the right to vote on account if race or ethnicity.”
African-American and Hispanic plaintiffs told Judge Ramos that similar claims of privilege had been rejected in other voting rights cases and that:
[L]imiting proof of discriminatory purpose to public pronouncements made by SB 14’s supporters, as Defendants would ask of the Court, would create the anomalous situation where states could avoid liability for imposing deliberately discriminatory voting legislation merely by ensuring that legislators’ self-serving, public statements masked any discriminatory purpose underlying the legislation. That would be dangerous precedent to set.
The response told the court that motion to compel was improper on procedural grounds because Texas legislators were not parties to the case and therefore needed to be subpeonaed individually.
The motion also sharply disputed DOJ’s claim that legislative privilege either did not exist or - alternatively - needed to yield in voting rights cases where intentional discrimination was an issue. The state told Judge Ramos that, in fact, the Supreme Court had expressly rejected that notion in Arlington Heights:
Arlington Heights establishes two propositions. First, litigants who seek to establish a discriminatory legislative purpose cannot compel testimony from state legislators except in ‘extraordinary instances.’ Second, even when an ‘extraordinary instance’ might justify compelling testimony from a state lawmaker, the testimony sought from that legislator will ‘frequently’ be barred by privilege. Although Arlington Heights does not define the scope of this ‘privilege,’ the Court’s citation of Nixon indicates that the privilege must extend to confidential communications involving state legislators.
Leaning heavily on cases dealing with compelled legislator testimony in court, the state told Judge Ramos that the Supreme Court had recognized only a narrow exception allowing compelled testimony in cases where criminal fraud was involved:
If the Court accepts DOJ’s invitation to extend Gillock to civil cases like this one, it will leave little work for legislative privilege to do. The privilege would protect zoning boards and city councils, while leaving state legislators vulnerable to intrusive discovery whenever their out-voted colleagues across the aisle seek a do-over in federal court.
The state also said that any legislative privilege - as well as attorney-client privilege - applied to communications between legislators and the Texas Legislative Council, citing provisions of the Texas Government Code. The state told the court:
The Texas Legislative Council is intended to operate, and in fact does so, as an extension of the staff of each legislator and committee. By statute, the Texas Legislative Council has no other purpose … The Texas Legislative Council’s sole function is to provide legal advice to the Legislature.
There can be no question that an attorney-client relationship exists between the Texas Legislative Council and individual members of the Legislature. The Texas Legislative Council is a nonpartisan legislative agency that provides bill drafting, computing, research, publishing, and document distribution services to the Texas Legislature and other legislative agencies. Attorneys from the Texas Legislative Council regularly advise members of the Legislature and their staffs on legal issues with the full understanding by those legislators and staff members that such communications are subject to the attorney-client privilege.
The state, however, that it would voluntarily ask legislators if they were willing to waive privileges:
As a courtesy, we have agreed to contact each of the still-living legislators to better understand if they are agreeable to allowing discovery relating to Voter ID. If a legislator indicates a willingness to waive legislative and attorney-client privilege, we will ask the legislator to perform an office search, and grant access to the Legislative Council if necessary, so that a search of the servers that contain any of the legislator’s electronically stored information relating to Voter ID may be identified and obtained.
The Perez plaintiffs filed a motion today to amend their complaint in the Texas redistricting case to drop claims about Nueces County, CD-2, and HD 23, HD 43, HD 64, and HD 65.
The motion said the State of Texas did not oppose the amendment.
With the amendment, the Perez plaintiffs remaining claims dispute the 2011 and 2013 maps for:
as well as the failure to create an additional minority-opportunity congressional district in the DFW Metroplex.
The amendment does not affect the claims being asserted by other parties.
Having previously moved to dismiss voter ID challenges by other parties, the State of Texas added Hidalgo County to the list today.
The short filing said Hidalgo County’s newly filed claims failed to state a claim the court could adjudicate because although the county “alleged an injury in fact … the Voting Rights Act was not passed to protect counties from the costs of complying with state law. The VRA protects voters.”
The motion went on to say that Hidalgo County also failed to satisfy the legal requirements set out by the Supreme Court in Powers v. Ohio for asserting claims on behalf of third parties.
Judge Nelva Gonzales Ramos entered an order this afternoon adopting an agreement reached by the parties in Texas voter ID case to govern how complicated database matches will take place.
Under the agreement, the State of Texas will turnover - by Friday - information requested by the Justice Department in interrogatories from the state’s election database, DPS’ driver’s license and personal identification card databases, and the Texas concealed carry license database.
DOJ then will use the information provided to run searches to gauge what voters “have been issued a United States military identification card, certificate of naturalization, certificate of citizenship, passport or passport card, or veterans identification card” as well as whether a voter has “been determined by the Social Security Administration to have a disability, or by the Department of Veterans Affairs to have a disability rating of at least fifty percent.”
In the event the state, DOJ, and minority plaintiffs are unable to agree on a single algorithm for running these searches, the order provides for DOJ to direct searches using one algorithm for it and the minority plaintiffs and one algorithm proposed by Texas.
The agreement also contains provisions to maintain the confidentiality and privacy of the information shared.
The agreement is expected to allow the fullest look yet at the extent to which Texas voters lack one of the prescribed forms of ID. Although the State of Texas attempted in 2012 to obtain preclearance of the voter ID law under section 5 of the Voting Rights Act, information from federal databases was not available in that case because of technical difficulties, and the state elected to proceed to trial in July 2012 without that information.
Judge Nelva Gonzales Ramos entered an order today denying the request of the Justice Department to postpone the start of trial in the Texas voter ID case from September 2014 to January 2015.
The order did not go into detail about the court’s decision but simply said that all current deadlines, including the September 2 trial date, “remain in effect.”
Under the existing schedule, the Texas voter ID case is scheduled to be tried ahead of DOJ’s challenge to North Carolina’s voter ID law.
Manny Fernandez at the New York Times has this look at potential impact of the Texas voter ID law on the upcoming Texas primary - and the political parties’ differing (but none too surprising) views on the subject.
Lisa Falkenberg at the Houston Chronicle has this story of a 79-year old Houston voter who has tried, without success so far, to get a DPS issued voter ID.
The Houston Chronicle reports that State Senators Rodney Ellis, Sylvia Garcia & John Whitmire are worried about the possibility of name mismatches at the polls and think that Harris County Clerk Stan Stanert should be doing more to proactively address the issue.
Meanwhile, up I-45, Tom Benning at the Dallas Morning News reports that Dallas County Commissioner Tom Cantrell thinks the county may be doing the exact opposite of Harris County and spending too much time and money to try to contact voters with possible name mismatches.
Over at the Texas Tribune, Jim Henson and Joshua Blank have this - admittedly non-legal but nonetheless interesting - look at the subject of Hispanics and “dog whistle politics” in Texas.
And while we’re on the subject of Texas Hispanics, Charles Kuffner at Off the Kuff has this look at, and a response to, Gallup polling about the political leanings of Hispanics in Texas.
The Dallas Morning News has this piece on apparent confusion among some Dallas County elected officials about whether and where they should be filing the annual personal finance statements required of officeholders.
The Monitor in the Rio Grande Valley has this report on an ongoing election contest in a race for county commissioner that features accusations that voters were improperly registered at houses where they did not actually live.
And last but not least, Noah Horwitz wonders in an op-ed in the Daily Texan whether Texas really should be electing its judges.
At a status conference this morning in the Texas voter ID case, Judge Nelva Gonzales Ramos said that she would take under advisement a Justice Department request to move start of trial in the case to January 2015 and that she would address the request at a hearing this Friday, February 14 at 10:30 a.m.
The court also said it would take up database discovery issues at that hearing.
For now, though, Jose Garza - lawyer for the South Texas plaintiffs - said that Judge Ramos appeared inclined to keep to a September trial date.
Separately, Judge Ramos also ordered the State of Texas to respond within 10 days to DOJ’s motion to compel turnover of legislative documents and set a hearing on the motion to compel for March 5 at 9:30 a.m.
Tuesday evening, lawyers for the Justice Department asked Judge Nelva Gonzales Ramos to postpone trial in the Texas voter ID case until January 2015.
Trial in case is currently set to start September 2.
DOJ said its request was necessary because it was “becoming increasingly apparent … that the time remaining under the current schedule is insufficient to complete the complex and time-consuming fact and expert discovery necessary to compile a sufficient record to allow this Court to resolve the issues presented.”
The motion focused, in particular, on the complexity of comparing, matching, and analyzing information in various state and federal databases to determine the statistical effect of the voter ID law on different ethnic groups.
The motion told the court that while the parties had made significant progress in developing an agreed framework for that comparison, much practical work remained to be done:
After the United States receives the data from Texas, the data must be reviewed and processed into the appropriate format for each agency. For most federal agencies, the coding and data preparation involved will be a multi-week process. The federal agencies also must have adequate computational time to run the search under the identified criteria.
Distinctive features of Texas’s registration system pose further complexities that will slow the process of obtaining the underlying information. Unlike several other states that have faced challenges to similarly crafted laws, Texas’s voter registration list does not contain racial information for registered voters, not does it contain social security numbers for a large percentage of its voters. The absence of a social security number significantly complicates the database matching process. Finally, SB 14’s requirements and exemptions also implicate more federal databases than other states’ laws. When combined with the sheer size of Texas’s population, these factors also extend the time necessary for conducting the statistical analysis.
In addition to data issues, DOJ said that delays caused by discovery disputes, including disputes over legislative privilege, warranted modification of the trial schedule.
Although DOJ proposed pushing back start of trial until after the November 2014 election, it noted that its proposed modifications would build in a process for seeking preliminary injunctive relief in advance of the election - with preliminary injunction motions due by July 18 and final reply briefs by August 15. If adopted, DOJ said the process would be similar to the process in place in the North Carolina voter ID case and would fully address concerns about “having some adjudication of the legality of SB 14’s requirements made in advance of the November 2014 Federal election.”
DOJ said that if it were required to proceed to trial under the current schedule, the “United States and the public interests it seeks to vindicate in enforcing the rights guaranteed by Section 2 of the Voting Rights Act will be irreparably prejudiced,” noting that “no challenge to a photo voter identification law under Section 2 of the Voting Rights Act [ ] has proceeded directly to trial under the sort of highly compressed schedule in place in this case.”
The motion said that plaintiff groups headed by the NAACP and the Texas League of Young Voters were joining with DOJ in making requests for changes to the scheduling order, but that the Veasey plaintiffs and the Texas Association of Hispanic County Judges and County Commissioners were opposed. The State of Texas and a separate group of individual South Texas plaintiffs did not take a position.
In a filing commenting on a separate proposed discovery order, the Veasey plaintiffs said they believed the database matching process could be shortened by “running certain steps of the process concurrently with one another” and that DOJ’s proposed process could “cost as much as three months or more in the schedule.”
Judge Ramos holds a status conference Wednesday, February 12, where the request is expected to be discussed, if not necessarily ruled upon.
Lawyers for the Justice Department filed a motion with Judge Nelva Gonzales Ramos this afternoon asking her to compel the State of Texas to turnover documents in the Texas voter ID case that DOJ said the state was improperly withholding.
The filing said that the documents being withheld by the state on grounds of privilege were “necessary … to ascertain the Texas legislature’s motivation for enacting SB 14” and included “communications concerning SB 14 and prior photographic voter identification proposals amongst Lieutenant Governor David Dewhurst, Speaker Joe Straus, Senator Troy Fraser (Senate sponsor of SB 14), Representative Patricia Harless (House sponsor of SB 14), and their top aides.”
DOJ said it had been told by lawyers for Texas Attorney General Greg Abbott that the state was not willing to “conduct a search for documents unless each legislator expressly declined to assert a state legislative privilege.”
However, DOJ took issue with the state’s assertion of a broad legislative privilege, telling the court that:
Defendants’ assertion of a state legislative privilege is inappropriate because the important federal interest in prohibiting intentional discrimination in voting and the uniquely probative nature of the withheld documents must overcome a privilege claim based merely on theoretical interference in state lawmaking.
The motion said that even if the court were to find that a state legislative privilege existed under the Federal Rules of Evidence, the balancing test used by courts - including the three-judge panel in the Texas redistricting case in San Antonio - warranted turnover of the documents:
When debating SB 14, key proponents did not speak to specific provisions included in or excluded from the bill or the unusual procedures used to enact the legislation and instead limited their public testimony to coordinated talking points. The documents and ESI [electronically stored information] being sought in discovery here would allow the Court to determine the credibility of legislative sponsors who refused to respond in public to questions posed by minority legislators. When Senator Royce West, a black state senator, asked Senator Troy Fraser whether SB 14 would ‘disproportionately affect African Americans and Hispanics,’ Senator Fraser merely replied, ‘I’m not advised.’ When Representative Rafael Anchía, an Hispanic state representative, asked Representative Patricia Harless whether she was aware of any studies conducted by a state agency ‘to project the number of voters that lack the required identification and what percentage of those voters are African American or Hispanic,’ she similarly responded, ‘No. Not advised.’
There is [ ] no alternative source for evidence of the contemporaneous and candid discussions of key legislative actors and their staff … [T]he public statements of legislative sponsors reflect repetitive, almost verbatim adherence to talking points and a refusal to engage publicly with the concerns of minority legislators.
Not compelling release of the documents, DOJ said, would let the state use privilege doctrines inappropriately:
The State of Texas, and specifically the Texas Legislature, plays a central role in this litigation. As a result, [State] Defendants have named legislators and their staff as prospective witnesses. When combined with the assertion of a state legislative privilege, this creates the potential for the improper use of a privilege as both a sword and a shield.
The motion also said the state was confusing legislative privilege with legislative immunity:
The State’s position glosses over the critical distinction between legislative immunity and recognition of a state legislative privilege. Legislative immunity protects legislators against personal liability for their ‘legitimate legislative activity.’ By contrast, this is a case brought by the United States in which no personal liability is at stake, and individuals who are immune from suit may nonetheless be compelled to testify in a related case.
DOJ also challenged the state’s assertion of an attorney-client privilege:
Defendants have withheld communications between multiple offices without establishing that an attorney employed by one legislator or official maintains an attorney-client privilege with a legislator who is not his or her employer.
Defendants have also invoked the attorney-client privilege to withhold hundreds of pages of communications between individual legislators or legislative aides and attorneys for the Texas Legislative Council (TLC). Attorneys for the TLC, however, cannot maintain an attorney-client relationship with every one of the individual members of the Texas legislature. The TLC is a state legislative agency, and its statutory mandate does not authorize the provision of legal advice or the formation of an individual attorney-client relationship.
DOJ also said that a large number of the withheld documents seemed to concern policy or political advice, rather than legal advice, and thus would not be covered by the attorney-client privilege.
The Texas Association of Hispanic County Judges and County Commissioners has amended its complaint in the Texas voter ID case to add the county judge and county commissioners of Hidalgo County as additional plaintiffs.
The filing with the proposed amended complaint told Judge Nelva Gonzales Ramos that the State of Texas did not oppose the amendment.
The amended complaint does not change the legal theories being pursued.